481 views | Hameed Ajibola Jimoh Esq. | December 30, 2019
It is normal (but not required) that when a person is advised to write his Will, such person thinks that he is wished for death in no time. The truth is that it is very important (considering the significance of Will) for a Muslim to write his Will before death. There have also been occasions where when a Muslim dies, the family members engage in battles among themselves over the estates left behind (even to the extent of using supernatural or devilish influence or assassinations against one another), even though Allaah has distributed the shares of every heir of the deceased Muslim. Even, on some occasions, one of the children or the wife of the deceased Muslim refuses to let go the estate of the deceased while claiming that either the house or any of the estates shall belong to him or her. These issues are then taken to court for adjudication (the situation which in my view, is a shame to the family as many times, the precious name of the family is tarnished). That is why this paper is of the thought that it is very significant for a Muslim (under the Islamic Law of Succession) to write his Will before his death.
According to Y.Y. Dadem in his book Property Law Practice in Nigeria (2nd Edition), Y.Y, Dadem, Jos University Press Limited, Jos, Plateau, 2012, at page 265, Will is defined thus ‘Wills and wills-making is an arrangement that ensures that the properties of a person devolves on his heirs according to his express wishes and directives. Also, Will may deal not only with real property but also with personal and movable properties. Dadem further states at page 266 of the nature of Wills thus ‘A Will helps a person to determine what happens to his properties after his death; it also helps him to give any instruction he may wish to be carried out if he is no longer alive. A Will is simply the intentions and wishes of a person to be carried out after his death’. A Will speaks after the death of the testator (deceased Muslim) and it can be changed and revoked by the testator while he is alive and that is why a Will is said to be ambulatory. Therefore, a Muslim needs to write his Will regardless of his very few properties or estate, even much more necessary it is for a Muslim who has many estates or properties (notwithstanding the facts that Allaah has distributed accordingly in the Quran). This is because, where a Muslim dies without a Will (intestate), all his estates or properties including his house(s), property, etc., shall be distributed according to the Holy Quran. Therefore, no one can claim that the house where the deceased (whether male or female (or who is mature built- maturity of a female is determined in Islam upon her first menstruation while the ejaculation or release of semen by a male signifies his maturity) or the property left behind) cannot be distributed! The house must be valued and distributed to all the beneficiaries or heirs of the deceased to whom Allaah has distributed. Therefore, anyone that is not mentioned by Allaah in the Quran or who is disqualified under Islamic Law to inherit stands denied! The exception to this is where the heirs jointly or individually (voluntarily but having the capacity to do so) share part of their shares to such person who is disqualified or not entitled to inherit the deceased (here it is not given as estates of the deceased rather as gifts from the heir(s)). This is why a Muslim needs to write his Will during his lifetime.
Allaah has instructed that Muslims must write their Will (according to and not amending how Allaah has distributed it as an obligation and not an option). Allaah says in Quran 4: 7 thus ‘There is a share for men and a share for women from what is left by parents and those nearest related, whether the property is small or large- a legal share’. Also see: Quran: 2:180; 4:11-12, 4:176. What this Islamic primary and supreme legal source of authority is saying is that everything left behind by the deceased Muslim must be distributed and inherited by the heirs. Therefore, as a Muslim, if you built a house (not a rented house) where you or your wife (ves) or any of your nuclear family lives, after your death, they will all vacate the property and everything is valued and shared among the heirs so that anyone that receives his share has the discretion to use same as he wishes (according to righteousness though). That is why there is no ‘family house’ share in the Islamic Law of Succession and if there is, the Quran would have mentioned this in its provisions. Furthermore, any Muslim who wishes that his wife (ves) or children should live or continue to live in his house after his death must make provisions for such. How will he make provisions for this nature without violating Allaah’s shares in the Quran? This is achievable by ‘endowment ’(Al-waqf).
According to Minhajul-Muslim by AAbubakri Jaabir AL-Jazaairy at page 308 (English translation version), ‘The endowment refers to maintaining the original property. Therefore, it should not be inherited, sold or given away as a gift. Its yield should be spent in charity on those for whom it was given as an endowment’. Therefore, in another word, ‘endowment’ could be named as’ donation’ or ‘charity’. An endowment is a recommended act under Islamic Law. Allaah says in Quran 33: 6 thus ‘Except that you do kindness to those brothers’. Also, the Messenger of Allaah ((may Allaah’s blessings and peace be upon him) said thus ‘When a man dies his actions are cut off, except for three things: charity whose benefit is continuous, knowledge from which benefit continues to be reaped, or the supplication of a righteous child (for him).’ (Reported by Muslim and the Sunan compilers, except for Ibn Majah). The Constitution of the Federal Republic of Nigeria, 1999 (as amended) also provides for this ‘endowment’ in section 262(2) and section 277(2). Therefore, according to Al-Jazaairy (op.cit.) at page 308, ‘The endowment of houses, lands, mosques, and other things, is included among acts of charity, whose benefit is continuous’. Endowment relates however to all immovable properties. Furthermore, an endowment can be made upon children (e.g. for their continuous educational training, economic empowerment, etc.). e.g. ‘I have endowed on my children and their offspring’ (this in my view is better). Also, if the benefits of the endowment are lost due to damage, some of the people of knowledge have permitted selling it and using its price to buy something similar to it. If anything is left (of money) after selling it, it should be used for a mosque or given in charity to the poor and needy people. See Minhajul-Muslim (op.cit) on page 310. The legal means of writing this endowment (its textual format) can be found on page 310 to 312. Same would have been produced in this paper but due to the insufficient space for same. So, the reader should kindly obtain a copy of the English version of the Minhajul-Muslim by Abubakri Jaabir Al-Jazaairy. Furthermore, this property to be used for endowment can also be property that generates rent (or commercial property) for the children’s economic or educational empowerment or for a life residents (this is when the house can be of such nature as a family house or where the wife (ves) and or children can live), since the endowed property is donated for charity and is not more part of the estates of the deceased, else, everything that such Muslim has left behind must be distributed and shared without living any part for whatever purpose.
Furthermore, in my humble view, it is simple for a Muslim to write his Will stating all that he intends as his last instructions. He should have in a separate paper, any property that he wishes to ‘endow’ for the charity. He may also include the same in his Will directly and where he writes the endowment in a separate paper or book, he must refer to it in his Will. He should state his debts (and those owing him/her) and his funeral arrangements (a Muslim is advised to have two separate books wherein in one, he writes all his debts and in the other book, to write all his belongings (as would do by a traveller and such is who he is on this earth)). Also, he should state that (at least) 2/3 of his estates shall be distributed according to the distribution in the Holy Quran and to then distribute the 1/3 (or less but less is advisable in order not to leave his heirs poor so that the left-over of the 1/3 will be added to the 2/3 and all be shared to the heirs) of the estates to those that are not to inherit as heirs as clearly stated by the Quran (which could include: disqualified heirs; non-Muslim parents and relatives; friends; those who he loves (but who would not share in the estate as Quranic heirs); etc. He should then get two (trusted) witnesses (two females equate a male, so either four females or two males or one male and two females) to attest to his signing of the Will (note: these witnesses do not need to read the content or he reading the content to them but to only inform them that that is the Will that he is signing, so he may seal it in an envelope or with the aid of a stapler or pin after signing same). Also, under the Islamic Law of Inheritance/succession, it is my humble view that the facts that the children and wife (ves) of the Muslim witness the Will does not render it invalid (as opposed to what is obtainable under the Common Law Wills), much more than the distributions for them have already been known to them as distributed by the Quran which they even read almost every day. So, it is better (in my view) for those close relatives to witness (even though they would not or might not know the content of the Will).
Then, the Will becomes valid and upon the death of the deceased, the Will takes effect as his last testament (in all these, a Muslim may not require a lawyer to write his Will for him). These are simplicities of Islamic Law. So far it is clear that he made the Will attested by trusted persons (without any doubt), such Will is binding as his last testament (and can be relied upon by an Islamic Court). But where the Muslim for one reason or the other would not use the wife (ves) or the children as witnesses, he might use two of those friends or Muslim brethren that he trusts or among the Imam (Cleric) of his Mosque or the Amir (Muslim leader of his Muslim Association) as his witnesses. He can also appoint those who would be his executors who would carry out his Will (according to how he has written it so far it does not violate the Islamic Law as stated by Allaah in the Quran (but it is advisable to appoint young but mature and physical persons as executors for its advantages)). He can then deposit it in Islamic Court or keep it in safe custody (at least a copy of it) that is very close to him and where his close relatives (wife and or children or parents) are aware of. Writing of Will becomes compulsory for every Muslim male and female upon maturity (maturity of a female is determined in Islam upon her first menstruation while the ejaculation or release of semen by a male signifies his maturity).
Finally, I believe that Muslims will find this piece beneficial to them.